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What you are missing is that Righthaven is the plaintiff in this case and appears to be a copyright troll (that is, they have sued lots of people for copyright infringement, many times in cases that were blatantly fair use). The judge is basically saying, "I don't like you, you have wasted the court's time on numerous occassions, so I am going to force you to make the case that this use in some way damaged your revenue more than it enhanced it."

Most newspapers are for-profit, so there goes that claim. Hard to sell newspapers when others are giving away your work for free (Yes I"m ignoring the fact the lvrj posted it on their website).

However, they are not being sued by the LVRJ, they are being sued by a puppet corporation that LVRJ sold the article to in exchange for a license to keep using it in the LVRJ. So, since their puppet corporation is not publishing it and is not making any money off of it except by suing, that will be a hard sell. If anything, since the only way this puppet corporation makes money is by being sold articles so it can attack, republishing LVRJ increases their revenues, so the effect is "positive";) Not that I think it's right to republish entire articles, even with permission, just because you are a non-profit. But since they aren't being sued by the LVRJ...

Do you really think that a local newspaper lost sales to an advocacy group in another city? People in Las Vegas chose to wait for a later copy of the article somewhere else, instead of the earlier version surrounded by other articles of local interest?

It's a parasite.The company creates no value, and acts to remove value from the marketplace via litigation. While the ostensible purpose is to protect the interests of the LV Review-Journal, I question whether a newspaper--no matter how well or poorly circulated--would need an entire company to protect its intellectual property; last I checked, that was usually handled by the newspapers' legal department.

So as far as I can tell, Righthaven has no legitimate reason to exist--and I'd be very happy if it and

They could issue a C&D instead of immediately jumping to the lawsuit stage. Let the people know their use of the articles from the Las Vegas Review Journal is not appreciated, and give them a chance to remove it in good faith before pursuing litigation. It would be a nice thing to do, and would probably prevent a lot of the cases on the docket.

Of course, they're probably not doing this, which means you could make a decent conclusion that they're simply out for money.

Unsuspecting? Are people who infringe on IP ever 'expecting' a lawsuit? Is it suddenly unfair to sue them just because they are ignorant of the law?

You assume that the defendants are always guilty. Given that Righthaven has already lost one of these lawsuits because the act in question was a valid fair use situation, then yes, "unsuspecting" is applicable.

I thought we still had some notion of "Innocent til proven guilty" in this country. If we want to pretend to stick with that, then saying to the plaintiffs "Show me that they actually did something wrong by explaining to my satisfaction why this isn't fair use" is exactly the right and fair approach.

I thought we still had some notion of "Innocent til proven guilty" in this country. If we want to pretend to stick with that, then saying to the plaintiffs "Show me that they actually did something wrong by explaining to my satisfaction why this isn't fair use" is exactly the right and fair approach.

It sounds like the judge is saying something akin to "I can't see that you have any case at all. This is your last chance to convince me that you are not just wasting my (and the defendant's) time."

I thought we still had some notion of "Innocent til proven guilty" in this country

Only in criminal cases, not civil cases.

I am also a bit weary about jumping to the defense of the non-profit on this one. While they did give credit properly, they didn't include excerpts, they copied the entire article wholesale. My understanding of copyright and fair use seems to tell me that this is not actually "fair use" and actually is infringing, as it does prevent any need to go to the original author to read the whole thing, and *does* deprive the content creator the ability to profit from their work. That is the idea of copyright, granting an exclusive right to profit for a limit amount of time, in exchange for the content eventually becoming public domain. That the non-profit didn't make a profit off the work isn't meaningful, and the content creator was denied the opportunity to.

That said, it is the kind of infringing that warrants a "you need to remove the article as a whole, and only use excerpts, instead pointing to the original article" type of letter, not legal action. At some point, the courts need to throw these cases out simply because the court shouldn't be the first course of action, and should instead be the LAST RESORT, after other reasonable methods have been exhausted.

If the non-profit organization liked the story, why wouldn't they simply acknowledge Righthaven by way of summary and then link back to the source. Copying verbatim, even with acknowledgement, denies Righthaven hits to its website that otherwise would have been forthcoming.

What is fair use? IANAL but I would hazard a guess that entire reproductions without permission aren't fair.

They can't link to Righthaven because Righthaven doesn't print the article. The Las Vegas Review Journal does. It's bad press when a newspaper sues a reader for reprinting a single quote from the paper, so they "sell" their publications rights to a puppet company they run, and that sues people. Yes, in this instance it's the entire article, but they are scattershotting lawsuits at any matches. They have previously sued for putting a sentance or two in a summary and linking to the article. That is, they

I'd like to see citations regarding this. It seems to me that as long as you're not quoting the work in its entirety, then the resulting work would be transformative and fair use. Is it really necessary to quote every single sentence in order to refute it?

Is it really necessary to quote every single sentence in order to refute it?

Only in an academic sense. Generally one picks out the most egregious portions and refutes those. Then one gets accused of hiding from the facts by taking quotes out of context. Then one slings mud, then one ducks mud slung.

As for the most effective means of refutation, line by line or paragraph-by-paragraph refutation of a work of any length might be effective in the abstract, but I doubt most people would read it. In practice it is more effective to create a general framework of critique, and use selective quotes to drive your point home. This is likely why there hasn't been a hue and cry about the stifling inability in our culture to engage in argument.

I also don't understand why you put law in quotes. It is law, whether you understand it or not.

The best and most effective refutation would be to quote entire chapters, and refute them line-by-line or paragraph-by-paragraph.

No, it isn't.

Since your work would be possibly larger than theirs, you're not exactly just copying their work for profit. In fact quoting for refuting is probably the highest and best use for advancing the useful arts and sciences.

"Entirety" is only one of four factors [university...fornia.edu] used in deciding whether a use of a copyrighted work is fair use. Some other biggies are whether it is transformative (yes! You've turned a pro-x argument into an anti-x argument, and added plenty of original material), "purpose and character" of your use (whether the goal of your use is to serve a societal purpose or just make money), the nature of the original work (in general, the more 'creative' rather than functional/factual the work is, the stronger its protectio

Had I been the composer or copyright owner of "Kookabura", I would have been appreciative of the homage in Men at Work's "Down Under", and would have wondered how many listeners would have recognized the riff and remembered fondly the rhyme they learned as children.

Actually, the evidence available suggests that exactly that is the case. The woman who wrote "Kookabura" was still alive (and still held copyright)when the Men at Work song came out. Before she died she gave the copyright to a nonprofit organization (I don't remember the name of te organization--something like the Australian National Library). That organization sold the rights to the song as part of a fund raiser.

The problem with simply linking to a site that's hosting an article is that file organization systems change and old articles are either archived (sometimes behind a paywall) or simply purged. If an article is particularly important to a cause (evidence of a particular opinion of a group of people in a specific area at a specific time), then it would seem that, for posterity sake, the article can at least be partially re-posted on another site with a link to the direct source.

It reminds of the the "out-of-print" book issue. Writer Bob writes a book. It's published and distributed. Demand for the book wanes, Bob dies, and the publisher pulps surplus stock. If someone wants to buy the book, s/he has to dig through used book stores or the like and, if the book is ever found, pay a premium for a book that is no longer in print. The reader just wants the content, not a collector's item... and yet it's not exactly legal to acquire the content without purchasing the rights from the publisher.

The problem is you can't maintain links. The material the link points to can change or be removed entirely, which creates a problem. If I criticize someone's positions or evidence in their article, they can change the article and smear me for having lied about what they said and I can't prove a thing. The only way I can prove they said what I say they said is to make my own copy of their article, one that they can't change, and serve it up off my own servers alongside my commentary on it. And I may need to

You could always host a full copy locally just in case the link does die/the article is purged for some reason and only publish it in that case. Loss of revenue would be invalid in that case as they wouldn't be generating of course this only works in the case of NPO's

The problem with simply linking to a site that's hosting an article is that file organization systems change and old articles are either archived (sometimes behind a paywall) or simply purged. If an article is particularly important to a cause (evidence of a particular opinion of a group of people in a specific area at a specific time), then it would seem that, for posterity sake, the article can at least be partially re-posted on another site with a link to the direct source.

That's the problem. The solution is to write your own article, or to maintain your links.

That's not a "solution", that's a crappy and unnecessarily labour-intensive workaround. Idiocy like this is why most of the 20th century's literary, musical and cinematographic legacy is disappearing down the toilet of history -- fear of brokenly restrictive copyright law makes people unwilling and, indeed, unable to properly preserve cultural artefacts by copying and sharing them after the original creators and/or publishers have died and/or lost interest in the works.

Not in this country, you can't. Also, this assumes that you have access to a copy. Example: there's a book I read when I was a young teenager. Our family copy was lost sometime in the early 2000s. I want to read it again. It went out of print in the 1970s. Copies are like gold dust, because it was printed as a rather shitty mass market paperback, and they tend to self-destruct within about 50 years anyway (the glue perishes and the paper oxidises). If it had entered the public domain within a reasonable tim

That's the problem. The solution is to write your own article, or to maintain your links.

Or, purchase rights to the work. The work is copyrighted, and you want to copy it. It's really quite simple. The owner will, very likely, sell you rights, at least if they are a publishing house.

I do that all the time for images that I use in my business-related presentations. For most copyrighted work that is owned by a company of some sort, it is relatively straightforward to approach their business development people and strike a deal. Usually this is as easy as finding the right page on their web s

and yet it's not exactly legal to acquire the content without purchasing the rights from the copyright holder.

Clarified that for you. Authors have been retaining copyright more and more often these last 30 years.

Publishers are given rights to copy and distribute. If they are given exclusive rights to copy and distribute, and the (copyright holder) lets you copy/distribute, the publisher then has a beef with the copyright holder, not you.

This case raises two really interesting undecided questions in fair use which I've heard batted around.

1.

Some friends of mine who are media law defense attorneys always insist that Fair Use is not a "defense," because the phrasing surrounding fair use is always "a fair use IS NOT infringement" rather than the typical language of affirmative defenses, which would say, "an infringement is PERMITTED(/not actionable/shall not result in damages) given fair use." This means that it is the plaintiff's obligation t

They posted the full story on their own site, that's not remotely close to fair-use. They should have done an editorial selecting various points and link back to the original. This is a blatant copyright violation, just as much as providing direct download of copyrighted music and video.

While usually you'd be right, there are instances where reposting an entire article is considered fair use. For example, if the use of the article is non-commercial and does not hurt the commercial value of the original, that's basically fair use.

Understand that fair use is not a law;it's an affirmative defense in a copyright violation case. Therefore, there are few specifics as to what does and does not constitute fair use; whether a specific case is fair use depends entirely on the facts and circumstances of the case.

I think you've got the law right, but I don't think that'll help prove fair use here.

Taking an article that is used to generate advertising revenue and reposting it somewhere that the author will not receive any revenue from goes firmly against the "commercial value of the original work" prong of the fair use defense.

Consider the equivalent: let's say I run a "non-profit" website, hypothetically just a blog where I generate no income, and I repeatedly copy articles from behind the NY Times paywall onto my s

Understand that fair use is not a law;it's an affirmative defense in a copyright violation case.

That's what the *AA type lobbyists want you to believe, but if you look at the copyright law, it includes Fair Use and says that Fair Use is a limitation on the scope of the copyright monopoly. I.e., a Fair Use is by definition not infringing.

Now you may find yourself on the receiving end of a copyright suit before a court clarifies what Fair Use means, but it is part of the law, same as the artificial monopoly

if the use of the article is non-commercial and does not hurt the commercial value of the original, that's basically fair use.

No, it's not. At all. See http://www.copyright.gov/fls/fl102.html. [copyright.gov] Whether or not the original document is being used for commercial purposes is only 1/4 of the things evaluated when deciding fair use.

The fact that it's an affirmative defense is what makes it so weird that the judge raised the issue. This would be like a judge yelling "ENTRAPMENT!!" during a trial.

In this case, it may not have been fair use, which is unfortunate because this Righthaven group sounds like a bunch of assholes. By posting the entire article, the Center for Intercultural Organizing may not have received any additional revenue, but they likely did deprive Righthaven of ad revenue, especially if CIO is ranked higher than Righth

Maybe the judge just thinks the lawyer that righthaven sent is an asshole, and he wants him to do as much work as possible. Judges basically get to do whatever they want in their own courtroom anyway. NPR had a story [npr.org] I heard yesterday where the judge refused to accept a motion to dismiss a case... from the prosecution. I didn't even know such a thing would be possible, but apparently judges really do have almost unlimited power in their little domains.

For example, if the use of the article is non-commercial and does not hurt the commercial value of the original, that's basically fair use.Understand that fair use is not a law;it's an affirmative defense in a copyright violation case. Therefore, there are few specifics as to what does and does not constitute fair use; whether a specific case is fair use depends entirely on the facts and circumstances of the case.

Saying that "fair use is not a law" is a strange statement, since it is codified in the Copyright Act of 1976. It spells out a four-part test, which includes "the amount and substantiality of the portion used in relation to the copyrighted work as a whole", which this example flunks pretty badly.

Really? I'd say that advertising exposure is of considerable importance to "fair use". One of the four main tests is whether it reduces the commercial value of the writing, and if I can read the whole article without any chance of seeing the ads that reduces the commercial value. Otherwise, copying anything off over-the-air television would be potentially fair use, since the only commercial value of (say) a football game is to expose the viewers to commercials.

And I would say the advertising revenue is of no concern whatsoever in this case, since the party losing the ad revenue is the newspaper, but... (wait for it...) they aren't the ones suing.Righthaven takes copyright of an article, and licenses it back to the newspaper. At that point, the economic value of the article to Righthaven is exhausted. There is no further "ad revenue" coming in to them.Now, they could possibly resell the article to other newspapers, but they aren't, because that isn't their business model. Their entire business model is making money by suing "infringers". In this case, the economic value to Righthaven is INCREASED by someone else posting it in its entirety.

This is nothing but the newspaper equivalent of the MPAA/RIAA lawsuits, where you smack someone for infringement, extort them for a settlement because they can't afford to defend themselves in court, then move on to the next person. One of their lawsuits has already been dismissed and found to be baseless, how many settlements have been made on similar cases, that might have been thrown out had the defendants had the money to fight in court?

Interesting. So does Righthaven simply purchase a swathe of articles and hope that someone infringes, or do they wait for someone to infringe and then buy the article?

Either way, this does change things. If the former then their net profit from a typical article is negligible and the net loss is also extremely small considering the value they place on an article (this business model will not be viable if they pay a reasonable amount per article). If the latter then it seems bizarre to buy a property k

From my understanding, since it looks bad for the newspaper to be suing everyone for copying 3 lines from an article, they 'sell' the articles to Righthaven, in exchange for a license to use the article. This transfers the ownership of the copyright from the newspaper to Righthaven. Righthaven then sues any alleged infringers based on those copyrights. Since, however, they do not publish the work, and do not retain the ad revenue from said work, once the article is "Sold" to them, and they offer the lice

If this is true, then why did the judge agree that Righthaven even has standing in this case? What you're saying sounds accurate, but if it were the entire story, then there wouldn't be a lawsuit. There has to be more to it than this. The original article makes it sound like the Review-Journal is backing Righthaven up.

The whole arrangement here sounds...weird. But that's why we have a legal system, I guess.

Because copyright law gives exclusive control over the copyright protected works to the copyright owner and it's licensees. It doesn't matter if they are making nothing from the copyright, it doesn't matter if the infringes is making nothing from it. there are a few fair use defenses that look at when the infringement was to further economical gain or not (commercial in nature), but the lack of that is not the sole determination for fair use.

Righthaven takes copyright of an article, and licenses it back to the newspaper. At that point, the economic value of the article to Righthaven is exhausted. There is no further "ad revenue" coming in to them.

I wouldn't think that matters. Wouldn't the payment they can get for licensing it back to the newspaper depend on the ad revenue it could get? If it can't get much ad revenue, they can't license it for much.

Of course the newspaper already paid them for *this particular* article, and they can't lose t

So... the newspaper sold the copyright. How would they sue if they wanted to? Not that this takes anything from the possible fair-use argument, but it sounds like the only recourse of the newspaper itself would be to "encourage" Righthaven to sue (that is probably the exact arrangement) and if possible, feed in ad-revenue data in the hopes of bolstering the case.

but it sounds like the only recourse of the newspaper itself would be to "encourage" Righthaven to sue

In this specific after the fact situations- yes. But if Righthaven didn't sue or take steps to stop infringements, then the newspaper could use that as leverage to negotiate lower rates.

In other words, if you are the only person with the story, it might be worth 10 times as much in order to keep revenue and content on your site. But if 20 other people have the same stuff, then the value of the story isn't

Their entire business model is making money by suing "infringers". In this case, the economic value to Righthaven is INCREASED by someone else posting it in its entirety.

Under that model the value of the work is defined by their profit from a lawsuit. So if they win and get a settlement, the value is increased; thus, on appeal, they will lose. But now they expended all these legal fees, and have taken a loss. Their license on the article now has a negative value; thus, on a second appeal, they will win.

The question we need to ask is how many appeals will land this in the Supreme Court? If it's an odd number, Righthaven will spiral into bankruptcy. If it is an even number, Righthaven's business model will make them an unstoppable profit machine.

Ask yourself this, I have two paintings, one of a common but almost indistinguishable copy of a Van Gogh and the other is an original Van Gogh. Ok, which one can I sell for more? The answer of course is the original. But if I had the only copy, I could get a premium for that too. Now suppose there are 2 million copies floating around, I can only get a little for the copy seeing how it's so common. Now I haven't sold it yet, but imagine how much you would gi

Indeed. The summary seems to suggest that just because it's a non-profit organisation doing the reposting and they gave some sort of credit, they have carte blanche to completely ignore copyright. It's surprising that any judge would behave this way, so I'm thinking there is more to this story than we have heard so far.

I agree that in general posting a whole article shouldn't be fair use, so I was quite surprised at this judges expectation they show it wasn't fair use.

Why? If it were a murder trial and the prosecution's argument was "Well Your Honor, this guy's a murderer", I'm sure the judge would expect them to show their work. If anything, it sounds like the judge is encouraging the plaintiff to put together a good argument for infringement, rather than "well, you just have to trust us on this", which would be dismisse

Ordinarily, I would agree with you. However, Righthaven is a company that exists for the sole purpose of filing copyright lawsuits against anyone who uses any part of an article published by the Las Vegas Review Journal. Righthaven does not publish anything. As far as I can tell, they don't even sell the rights to publish anything. What you miss is that since the organization being sued is a non-profit, Righthaven must show how their publishing of the article reduces Righthaven's ability to make money from the article. Since Righthaven doesn't make money from the article (except from copyright infringement lawsuits), this will be a hard sell in court.

Unfortunately for Righthaven, the courts have generally interpreted that clause to mean interfering with a copyright holder's ability to make money that they would have made if the infringer hadn't copied their work

It's not even close to being black letter law. The law says that "fair use" is permitted, and mentions various considerations that may be used to decide if a use is fair, but it doesn't give an exhaustive definition of fair use. The amount being copied is one factor mentioned in the law, but the issue is whether the amount being copied is essential for the proposed use; if you need to copy the whole thing to make use of it, and that use is fair use, the law permits the copying of the whole thing - the most